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or  TUE 


JUDGES 

4flP% 

OP  TUE 

SUPREME  COURT  OF  ALABAMA. 

IN  "CONSCRIPT  OASES’; 


INVOLVING  Till;  QUESTION, 


WHETHER  STATE  -COURTS  AND  JUDICIAL  OFFICERS  HAVE  JURIS¬ 
DICTION,  ON  habeas  corpus,  TO  DISCHARGE  CONSCRIPTS 
FROM  CUSTODY  OF  ENROLLING  OFFICER  OF 
CONFEDERATE  STATES. 


I  »e  ported  l>y 

W.  SHEPHERD, 


REPORTER  OK  THE  SUPREME  COURT. 


MONTGOMERY,  ALA. 

MONTGOMERY  MAIL  BOOK  ANT)  JOB  OFF  I  Cl. 

1803. 


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■  •  'M  < 


SUPREME  COURT  OF  ALABAMA, 

JANUARY  TERM,  1863. 


Ex  Parte  HILL. 

[application  for  prohibition  to  probate  judge.] 

1.  Jurisdiction  of  Slate  courts  to  discharge  persons  enrolled  as  conscripts. 
State  courts  and  judicial  officers  have  no  jurisdiction,  on  habeas  corpus,  to  dis¬ 
charge  persons  who  arc  in  the  custody  of  an  enrolling  officer  of  the  Confederate 
States,  and  who  have  been  enrolled  as  conscripts,  on  the  ground  of  physical 
incapacity  for  military  service. 

2.  When  prohibition  lies.— Where  a  probate  judge  has  granted  the  writ  of 
habeas  corpus  to  an  enrolled  conscript,  whose  petition  shows  on  its  face  that  said 
judge  has  no  jurisdiction  to  inquire  into  the  validity  of  his  enrollment,  the  writ 
of  prohibition  will  be  awarded  by  the  supreme  court,  without  a  previous  appli¬ 
cation  to  the  circuit  court,  enjoining  further  proceedings  by  the  probate  judge; 
and  the  application  for  the  writ  may  be  made  by  the  enrolling  officer  who  has 
the  custody  of  the  conscript. 

Application  by  L.  H.  Hill,  an  officer  in  the  army  of  the 
Confederate  States,  and  the  enrolling  officer  for  the  district 
which  includes  the  county  of  Montgomery,  for  the  writ  of 
prohibition ,  to  be  directed  to  the  probate  judge  of  said  county, 
enjoining  and  restraining  him  from  further  proceedings  in  the 
matter  of  the  petitions  of  Asa  J.  Willis,  E.  P.  Johnson,  and 
Calvin  Reynolds,  respectively,  for  the  writ  of  habeas  corpus, 
by  which  said  petitioners  sought  to  obtain  their  discharge  from 
the  custody  of  said  enrolling  officer. 

P.  T.  Sayre,  for  the  petitioner. 

S.  F.  Rice,  and  Jno.  A.  Elmore,  contra. 


LI  5 4 941  LAW  LIBRARY 


4 


A.  J.  WALKER,  C.  J. — Three  persons,  who  were  taken 
and  detained  in  custody  under  the  conscript  law  by  the  enroll¬ 
ing  officer,  severally  petitioned  the  probate  judge  for  writs 
of  habeas  corpus,  predicating  their  prayers  for  a  discharge  upon 
the  ground  of  exemption  from  conscription  on  account  of 
physical  disability;  and  the  writs  were  awarded  by  that  officer. 
The  enrolling  officer,  contending  that  the  judicial  tribunals  of 
the  State  have  no  jurisdiction  over  the  matter  of  his  detention 
of  those  persons  as  conscripts,  now  applies  to  this  court  for 
writs  of  prohibition.  Thus  the  duty  devolves  upon  this  court, 
of  deciding  whether  a  State  tribunal  has  authority  to  discharge 
one  who  has  been  taken  and  is  detained  by  the  enrolling  offi¬ 
cer  as  a  conscript,  upon  the  ground  of  his  exemption  for  the 
reason  above  stated. 

The  first  section  of  the  act  of  congress,  approved  April  16th, 
1862,  authorizes  the  president  to  call  out  and  place  in  the 
service  of  the  Confederate  States  men  between  the  ages  of 
eighteen  and  thirty-five  years,  who  were  not  legally  exempted 
from  military  service.  The  amendatory  act  of  27th  Septem¬ 
ber,  1862,  in  language  similar  to  that  employed  in  the  original 
law,  extends  the  authority  to  men  between  the  ages  of  thirty- 
five  and  forty-five;  and  requires  the  president,  if  he  should  not 
call  out  all  the  persons  between  the  specified  ages,  to  discrimi¬ 
nate,  by  limiting  his  call  to  persons  of  some  particular  age 
under  forty-five.  By  an  act,  approved  21st  April,  1862,  cer¬ 
tain  descriptions  of  persons  were  exempted  from  enrollment 
for  service  in  the  armies  of  the  Confederate  States.  That  act 
was  repealed  by  one  adopted  on  the  1 1th  October,  1862,  which 
exempts  from  military  service  in  the  armies  of  the  Confeder¬ 
ate  States"  various  classes  of  persons  therein  described. 

The  two  acts  of  16th  April  and  27th  September  impose 
upon  the  authority  to  conscribe  a  restriction  to  persons  not 
legally  exempted.  The  persons  exempt  are  not  described  by 
name,  but  by  classes,  defined  by  reference  to  bodily  or  mental 
incapacity,  to  the  incumbency  of  certain  offices,  the  practice 
of  certain  useful  arts,  the  profession  of  some  specified  religious 


5 


creeds,  and  other  distinguishing  peculiarities.  As  the  authority 
to  conscribe  does  not  extend  to  the  individuals  who  compose 
those  classes,  it  can  only  be  exercised  by  ascertaining  the 
persons  to  whom  the  peculiarities  distinguishing  the  different 
classes  pertain.  The  ascertainment  of  the  legal  subjects  of 
conscription  is  an  unavoidable  step  in  the  proceeding.  Inquiry 
and  decision,  upon  this  point,  are  necessarily  involved  in  the 
exercise  of  the  president’s  power  to  conscribe  all  within  the 
prescribed  ages,  “  who  are  not  legally  exempted  from  military 
service.” 

The  selection  from  the  community  at  large  of  the  subjects 
of  conscription,  involving  inquiry  and  decision  as  to  the  statu s 
of  every  man,  was  obviously  susceptible  of  accomplishment 
by  the  executive  department  of  the  government,  only  through 
the  agency  of  officers,  clothed  with  the  requisite  authority. 
Congress  therefore  has  authorized  the  appointment  of  such 
officers.  By  the  third  section  of  the  act  of  16th  April,  1862, 
the  president  is  empowered  to  appoint  officers,  charged  with 
the  duty  of  enrolling  conscripts,  “  in  accordance  with  rules  and 
regulations  to  be  prescribed  by  him.”  A  later  act,  approved  8th 
■October,  1862,  directs,  that  enrollments  shall  be  made  under 
instructions  from  the  war  department ,  and  reported  by  the 
enrolling  officer.  Furthermore,  an  act,  approved  October  11th, 
1862,  authorizes  the  assignment  of  one  or  more  surgeons  to 
the  duty  of  examining  those  enrolled  ;  and  declares,  that  th# 
decision  of  such  surgeon  or  surgeons,  “  under  regulations  to  be. 
established  by  the  secretary  of  vmv  ”,  as  to  physical  and  mental 
capacity,  shall  be  final. 

The  employment  of  appropriate  officers  to  execute  the  con¬ 
script  law,  is  thus  clearly  authorized.  Every  act  of  conscrip¬ 
tion  by  such  officers  must  be  done  pursuant  to  a  decision  based 
upon  an  inquiry,  in  which  the  hearing  and  weighing  of  evi¬ 
dence  must  often,  if  not  always,  be  necessary.  Without  an 
inquiry  and  judgment  as  to  the  liability  to  conscription,  no 
enrollment  could  be  made,  because  it  could  not  otherwise  be 
determined  who  were  subject  to  conscription.  This  authority 


ZLA  QS  'l 


6 


to  inquire  and  decide  is  not,  however,  left  to  implication  from 
the  nature  of  the  act.  There  is  an  express  authority  to 
decide  upon  the  question  of  exemption  on  account  of  mental 
or  physical  incapacity,  and  the  decision  of  the  tribunal  desig¬ 
nated  is  made  final.  The  existence  of  such  authority  is  clearly 
indicated  in  the  phraseology  of  the  law,  declaring,  that  “  all 
persons  who  shall  he  held  wifit  for  military  service  in  the  field, 
by  reason  of  bodily  or  mental  incapacity,  under  the  rules  to 
be  prescribed  by  the  secretary  of  war,”  shall  be  exempt. 
The  holding  or  deciding  persons  to  be  unfit  for  military  service, 
under  rules  prescribed  by  the  secretary*  of  war,  must  be  by 
the  officers  appointed  to  execute  the  law.  The  authority  to 
hear  evidence  and  decide,  is  a  plain  inference  from  the  provis¬ 
ion  in  the  act  of  11th  October,  1862,  that  the  claim  of  certain 
classes  of  artisans  is  to  be  supported  by  affidavit,  which  shall 
only  be  primatfacie  evidence  of  the  facts  stated.  Further¬ 
more,  the  general  idea,  that  the  power  of  investigation  and 
decision  is  a  part  of  the  authority  to  be  exercised  by  the 
respective  officers,  is  very  clearly  brought  to  view  in  the  clause 
of  the  same  act,  which  requires  the  secretary  of  war,  upon 
evidence,  to  judge  whether  the  exempted  artisans  have,  by 
their  conduct,  forfeited  the  privilege.  It  must  be  noted,  too, 
that  the  duties  of  the  officers  are  to  be  discharged  under  rules 
and  regulations  to  be  prescribed  by  the  secretary  of  war. 

•Surely,  these  rides  and  regulations  are  not  contemplated  to  be 
merely  the  guides  of  the  subordinate  officers,  in  performing 
the  acts  of  writing  down  the  names  of  the  conscripts,  and 
taking  charge  of  them.  They  ivere  designed  to  control  and 
direct  them  in  the  higher,  more  important,  and  more  difficult 
office  of  inquiring  and  judging  as  to  the  liability  to  conscrip¬ 
tion.  The  execution  of  the  law  is  utterly  impracticable,  if 
there  be  no  authority  to  ascertain  and  judge  who  are  the  legal 
subjects  of  conscription.  With  the  utmost  confidence,  I  assert 
the  proposition,  that  the  officers  employed  in  the  execution  of 
the  law  are  clothed  with  authority  to  judge  what  persons  fall 
within  its  operation.  The  exercise  of  this  authority  is  an 


7 


official  duty,  to  be  performed  under  the  guidance  of  rules  pre¬ 
scribed  by  the  secretary  of  war. 

A  State  judge,  in  discharging  one  taken  as  a  conscript,  upon 
the  ground  that  he  was  not  legally  liable  to  conscription,  would 
supervise  and  control  an  officer  of  the  Confederate  States,  in 
the  performance  of  an  official  duty,  and  in  the  exercise  of  a 
legal  authority.  He  would,  furthermore,  annul  the  decision 
which  such  officer  was  authorized  to  make,  and  abrogate  the 
enrollment  based  upon  that  decision.  The  decision  of  the 
question  of  amenability  to  conscription  is  within  the  scope  of 
the  authority  exercised.  An  incorrect  decision  would  be  an 
erroneous  exercise  of  a  subsisting  authority — not  a  mere  usur¬ 
pation.  The  officer  is  perfectly  within  the  limit  of  his  author¬ 
ity,  when  he  investigates  and  decides  :  and,  though  he  may 
err,  he  is  not  an  usurper.  Neither  the  absolute  invalidity  of 
the  conscription,  nor  a  liability  in  trespass,  would  result  from 
an  incorrect  decision. — Duckworth  v.  Johnson,  7  Ala.  578  ; 
Savaeool  v.  Dough  tod;  5  Wend.  170  ;  Easton  v.  Calender, 
11  ib.  90. 

The  principle  is  illustrated  in  the  case  of  a  justice:  erring 
in  the  exercise  of  his  authority  to  commit  offenders  ;  and  of 
assessors,  who  incorrectly  decide  that  a  given  person  belongs 
to  a  class  liable  to  be  taxed.  The  levy  of  a  fieri  facias  by  a 
marshal  of  the  Confederate  States,  upon  property  not  belong¬ 
ing  to  the  defendant,  does  not  present  an  analogous  question. 
He  is  simply  authorized  by  the  process  to  do  a  particular 
thing.  He  is  not  called  upon  by  the  law  to  decide  any  thing. 
He  has  none  of  the  attributes  of  a  tribunal  armed  with  authority 
to  investigate  and  decide  questions.  His  judgment,  of  course, 
he  exercises,  in  determining  whether  the  property  upon  which 
he  levies  belongs  to  the  defendant ;  but,  upon  a  principle  of 
public  policy,  he  decides  at  liis  own  peril.  The  exercise  of 
his  judgment  is  for  his  own  protection,  and  not  by  authority 
of  law.  His  process  authorizes  him  to  levy  upon  the  defend¬ 
ant’s  property — not  to  adjudge  the  question  of  the  title  to 
property.  -  It  neither  requires  him  to  construe  a  law,  nor  to 


8 


decide  upon  evidence  as  to  the  cases  that  come  within  its  ope* 
ration.  The  law  under  which  he  acts,  and  which  governs  him, 
unlike  that,  under  which  the  enrolling  officer  acts,  has  not 
deemed  it  necessary  to  bestow  authority  for  an  investigation 
and  5 -judicial  decision,  preliminary  to  his  action ;  but,  in 
requiring  him  to  act  at  his  own  personal  peril,  has  expressly 
repudiated  such  an  idea.  No  act  of  congress  prescribing  a 
marshal’s  authority,  nor  any  construction  thereof,  can  be  drawn 
in  question  in  a  suit  against  him  for  the  levy  of  process  against. 
:ne,  upon  the  property  of  another.  The  simple  inquiry,  in 
such  a  suit,  would  be,  whether  the  particular  chattel,  under 
;he  general  law  governing  property,  belonged  to  the  one  per- 
.-on  or  the  other ;  while  at  every  step  in  the  cases  now  before 
is,  the  court  must  expound  the  act  of  congress  marking  out 
:he  authority  of  the  officer.  The  decisions,  therefore,  as  to 
die  power  of  the  State  courts  over  the  United  States  marshals, 
erring  in  the  execution  of  their  process,  have  no  bearing  upon 
the  question  before  us.  The  same  distinction  applies  to  an 
irrest  of  one  person,  by  virtue  of  process  against  another. 
Uruen  v.  Ogden,  6  Hals.  370  ;  Dunn  v.  Vail,  7  Mar.  La.  416; 
Slocum  v.  Mayberry,  2  Wheaton,  1. 

The  officer  charged  with  the  execution  of  the  conscript  law, 
not  only  has  authority  to  investigate  and  decide,  but  he  is 
required  to  do  so  according  to  regulations  prescribed  by  the 
secretary  of  war.  The  question  of  these  cases,  then,  is  nar¬ 
rowed  down  to  this  :  can  a  State  judge,  by  writ  of  habeas 
corpus ,  supervise,  control,  and  annul  the  act  of  officers  of  the 
Confederate  States,  done  in  the  exercise  of  authority  given  by 
the  law  of  that  government,  and  required  to  be  done  under 
regulations  prescribed  by  the  secretary  of  war  ? 

It  is  proper  to  approach  the  interesting  question  above 
stated,  by  an  observation  in  reference  to  the  relation  existing 
between  the  government  of  the  Confederacy  and  the  govern¬ 
ments  of  the  several  States  which  compose  it.  The  govern¬ 
ment  of  the  Confederacy  possesses  the  powers  delegated  by 
the  constitution ;  and  the  States  retain  their  original  powers, 


9 


except  so  far  as  they  may  be  affected  by  the  grants  or  prohi¬ 
bitions  of  the  constitution  of  the  Confederate  States.  While 
the  Confederate  government  exists  by  virtue  of  delegated 
authority,  its  powers,  within  their  appropriate  boundary,  are 
not  subordinate  to  those  of  the  States.  On  the  contrary,  it  is 
expressly  declared  in  the  constitution,  that  the  constitution, 
and  the  laws  of  the  Confederate  States  made  in  pursuance 
thereof,  and  all  treaties  made  under  the  authority  of  the  Con¬ 
federate  States,  shall  be  the  supreme  law  of  the  land.  The 
authority  of  all  governments  must  be  exercised,  and  must 
reach  the  subjects  of  its  operation,  through  the  agency  of 
officers.  The  officers  of  the  Confederate  States,  and  of  the 
several  States,  must  exercise  their  functions,  and  apply  the 
authority  of  their  respective  governments,  within  the  same 
temtorial  area.  It  is  the  clearest  deduction  of  reason,  that 
the  officers  of  neither  of  these  distinct  powers,  operating 
within  the  same  territorial  limits,  and  performing  proper  func¬ 
tions,  can  be  subordinated  to  the  other,  except  as  authorized 
by  the  constitution,  without  detriment  to  the  harmonious  work¬ 
ing  of  our  complicated  system,  and  peril  to  the  rights  and 
benefits  which  that  system  was  designed  to  secure. 

The  analogy  (in  all  respects  which  concern  our  subject)  of 
our  government  to  that  of  the  United  States  enables  us  to  draw 
from  the  history  of  the  past  an  illustration  of  the  idea  which 
we  are  striving  to  develop.  The  fugitive-slave  law  was  passed 
to  protect  and  maintain  a  clear  constitutional  right  of  a  class 
of  citizens  in  the  United  States,  whom  the  fluctuations  of  time 
had  localized  in  less  than  a  moiety  of  the  States.  In  most  of 
the  other  States,  an  antagonism  of  sentiment  to  that  right  gradu¬ 
ally  intensified  into  fanaticism,  and  extended  to  the  persons  to 
whom  the  right  appertained.  A  right  of  subordinating  the 
authority  of  the  officers  deputed  to  execute  that  law,  to  the  con¬ 
trol  of  local  State  tribunals,  infected  by  the  feeling  prevalent  in 
those  States,  was  asserted  and  maintained.  In  many  localities, 
the  execution  of  the  law  was,  by  this  means,  prevented  ;  and 
the  just  claim  of  the  people  of  the  slave-holding  States,  to  the 


4 


t 


10 


maintenance  of  a  constitutional  right,  was  defeated.  The 
powers  of  the  Confederate  government  are  given  to  it  for  the 
benefit  and  protection  of  all  the  people  in  all  the  States  ;  and 
the  historic  lesson  teaches  us,  that  the  execution  of  the  laws, 
passed  by  virtue  of  those  powers,  can  not  be  safely  left  to  the 
control  of  local  tribunals.  The  absence  of  the  danger,  under 
our  system,  can  only  be  argued  by  arrogating  to  ourselves  a 
freedom  from  the  frailties  of  human  nature.  . 

The  Supreme  Court  of  the  United  States,  faithful  to  the 
constitution,  while  every  other  branch  of  the  government 
seemed  to  conspire  its  overthrow,  through  its  venerable  and 
illustrious  Chief  Justice,  announced  an  opinion  upon  the  as¬ 
sumption  by  the  court  of  Wisconsin  of  the  authority  to  thwart 
the  execution  of  the  fugitive-slave  law  in  that  State.  The  case 
was  Ableman  v.  Booth,  and  the  United  States  v.  Booth,  reported 
in  21  Howard,  500.  The  entire  opinion  seems  to  have  had  the 
approval  of  each  one  of  the  nine  judges  composing  the  court; 
which  was  rarely  the  case,  where  questions  of  constitutional 
law  were  presented.  In  that  opinion  it  is  said  :  “  The  powers 
of  the  general  government,  and  of  the  State,  although  both 
exist,  and  are  exercised,  within  the  same  territorial  limits,  are 
yet  separate  and  distinct  sovereignties,  acting  separately  and 
independently  of  each  other,  within  their  respective  spheres, 
And  the  sphere  of  action  appropriated  to  the  United  States  is 
as  far  beyond  the  reach  of  the  judicial  process  issued  by  a 
State  judge,  or  a  State  court,  as  if  the  line  of  division  was 
traced  by  landmarks  and  monuments  visible  to  the  eye.”  In 
this  extract,  and  in  other  parts  of  the  opinion,  the  proposition 
is  maintained,  that  neither  government  can  pass  the  line  of 
division  between  their  respective  powers;  and  the  court  fur¬ 
ther  asserts,  that  the  United  States  marshal,  after  legally 
showing  his  authority  to  the  State  tribunal,  would  be  bound  to 
resist  its  further  interference.  The  practical  effect  of  the  law, 
as  declared  in  that  case,  is,  that  a  State  court,  or  officer,  has 
no  right  of  control  over  the  conduct  of  the  officers  of  the  gene¬ 
ral  government,  in  the  exercise  of  an  authority  bestowed  by 
its  law.  v 


Nor  was  this  principle,  when  announced  in  the  case  above 
named,  at  all  new  in  the  jurisprudence  of  the  United  States. 
I  avail  myself  of  Chancellor  Kent’s  condensation  of  the  decis¬ 
ions  upon  that  subject,  and  of  the  authority  of  his  great  nfrfne, 
in  behalf  of  my  argument,  in  the  following  extract  from  his 
Commentaries  :  “  No  State  can  control  the  exercise  of  any  author¬ 
ity  under  the  Federal  government.  The  State  legislatures  can 
not  annul  the  judgments,  nor  determine  the  extent  of  the  juris¬ 
diction,  of  the  courts  of  the  Union.  This  was  attempted  by 
the  legislature  of  Pennsylvania,  and  declared  to  be  inoperative 
and  void  by  the  Supreme  Court  of  the  United  States,  in  the 
case  of  the  United  States  v.  Peters,  5  C ranch,  115.  *  *  * 

It  has  also  been  adjudged,  that  no  State  court  has  authority  or 
jurisdiction  to  enjoin  a  judgmerft  of  the  Circuit  Court  of  the 
United  States,  or  stay  proceedings  under  it.  This  was  at¬ 
tempted  by  a  State  court  in  Kentucky,  and  declared  to  be  of 
so  validity  by  the  Supreme  Court  of  the  United  States,  in 
McKim  v.  Voorhies,  7  Cranch,  279.  No  State  tribunal  can 
interfere  with  seizures  of  property,  made  by  revenue  officers 
under  the  laws  of  the  United  States  ;  nor  interrupt,  by  pro¬ 
cess  of  replevin,  injunction,  or  otherwise,  the  exercise  of  the 
authority  of  the  Federal  officers;  and  any  intervention  of  State 
authority,  for  that  purpose,  is  unlawful.  This  was  so  declared 
by  the  Supreme  Court,  in  Slocum  v.  Mayberry,  2  Wheat.  1. 
Nor  can  a  State  court  issue  a  mandamus  to  an  officer  of  the 
United  States.  This  decision  was  made  in  the  case  of  McClung 
v.  Silliman,  6  Wheat.  598 ;  and  it  arose  in  consequence  of  the 
Supreme  Court  in  Ohio  sustaining  a  jurisdiction  over  the 
register  of  the  land-office  of  the  United  States,  in  respect  to  his 
ministerial  acts  as  register,  and  claiming  a  right  to  award  a 
mandamus  to  that  officer,  to  compel  him  to  issue  a  final  certifi¬ 
cate  of  purchase.  The  principle  declared  by  the  Supreme 
Court  was,  that  the  official  conduct  of  an  officer  of  the  govern¬ 
ment  of  the  United  States  can  only  be  controlled  bv  the  power 
that  created  him.  If  the  officer  of  the  United  States  who 
seizes,  or  the  court  which  awards  the  process  to  seize,  has 


12 


jurisdiction  of  tho  subject-matter,  then  the  inquiry  into  the 
validity  of  the  seizure  belongs  exclusively  to  the  Federal  courts. 
But.  if  there  be  no  jurisdiction  in  the  instance  in  which  it  is 
averted — as  if  a  marshal  of  the  United  States,  under  an  exe¬ 
cution  in  favor  of  the  United  States,  against  A,  should  seize  the 
person  or  property  of  B — then  the  State  courts  have  jurisdic¬ 
tion  to  protect  the  person  and  property  so  legally  invaded ; 
and  it  is  to  be  observed,  that  the  jurisdiction  of  the  State  court 
in  Rhode  Island  was  admitted  by  the  Supreme  Court  of  the 
United  States,  in  Slocum  v.  Mayberry,  upon  that  very  ground.” 
1  Kent’s  Com.  409-10-11.  See,  also,  McNut  v.  Bland,  2  How.  17. 

As  the  officers  authorized  to  execute  the  conscript  law,  have 
jurisdiction  to  examine  evidence  and  decide  upon  the  question 
of  amenability  to  conscription,  the  authority  of  Chancellor 
Kent,  as  exhibited  in  the  foregoing  extract,  is  wholly  opposed 
to  the  jurisdiction  claimed  for  the  probate  judge  in  these 
cases.  Judge  McLean,  of  the  Supreme  Court  of  the  United 
States,  holding  a  circuit  court  in  Indiana,  in  a  charge  to  a  jury 
trying  a  case  wherein  a  master  sought  to  recover  damages  for 
the  taking  of  his  slaves  from  his  custody  under  a  habeas  corpus 
issued  by  a  Michigan  court,  held,  that  a  State  tribunal  could 
not  release  from  custody  persons  held  under  the  authority  of 
the  United  States,  and  procured  from  the  jury  a  verdict  for 
the  full  measure  of  the  master’s  damages. — Norris  v.  Newton, 
6  McLean,  92.  Judge  Nelson,  of  the  Supreme  Court  of  the 
United  States,  in  a  charge  to  the  grand  jury,  maintained  the 
same  doctrine  in  1851. — Hurd  on  Habeas  Corpus,  198.  Judge 
Cheves,  of  South  Carolina,  in  a  learned  opinion,  reported  in 
the  12th  vol.  Niles’  Register,  declined  to  take  jurisdiction  over 
the  matter  of  the  discharge  of  one  imprisoned  under  process 
issued  by  the  authority  of  the  United  States  and  the  recorder 
at  Charleston  has  recently  followed  the  principle  of  that  decis¬ 
ion,  in  refusing  to  interfere  under  a  writ  of  habeas  corpus  with 
the  detention  in  the  army  of  an  infant  only  sixteen  years  of 
age  ;  maintaining,  that  the  precedent  set  by  Judge  Cheves 
has  since  been  acquiesced  in  as  a  correct  exposition  of  the  law 


13 


in  South  Carolina. — Ex  parte  Rhodes,  12  Niles’  R.  264 ;  In  the 
matter  of  Benjamin  Sauls,  Charleston  Courier  of  20th  Oct.  1862. 
In  the  State  of  New  York,  speaking  for  himself,  and  not  as  the 
organ  of  the  court,  Chancellor  Kent  laid  down  the  principle 
more  recently  asserted  in  the  case  of  Ableman  v.  Booth. — Ex 
•parte  Ferguson,  9  Johns:  239.  It  appears,  however,  that  this 
opinion  never  controlled  the  action  of  the  New  York  courts;  for 
they  seem  to  have  since  exercised  the  controverted  jurisdic¬ 
tion. — Ex  parte  Stacy,  10  Johns.  328;  Carlton’s  case,  7  Cow.  471: 
United  States  v.  Wyngall,  5  Hill.  16. 

There  are  several  decisions  by  State  courts,  which  hold  that 
they  have  the  power  to  discharge  persons  improperly  impris¬ 
oned  under  the  authority  of  the  United  States,  or  even  under 
its  process. — Almeida’s  case.  12  Niles’  Reg.  415;  Lockington’s 
case,  5  Hall’s  Law  Journal,  301  ;  Commonwealth  v.  Fox,. 
7  Barr.  336:  State  v.  Dimick.  12  N.  H.  194  ;  Commonwealth  v. 
Harrison,  11  Mass.  63;  The  State  v.  Brearly,  2  South.  555. 
Several  of  these  cases  pertain  to  the  question  of  the  discharge 
of  soldiers,  enlisted  during  their  minority,  by  contracts  which 
the  act  of  congress  declared  void.  We  will  not  pause  to  inquire* 
whether  they  are  not  distinguishable  from  these  cases :  for.  if 
analogous,  we  are  not  willing  to  follow  them.  They  were 
decided  before  the  Supreme  Court  of  the  United  States  made 
its  decision  in  Ableman  v.  Booth,  herein  before  noticed.  We 
can  not  reconcile  with  sound  principle,  or  real  expediency,  the 
proposition,  that  an  offider  of  the  Confederacy,  when  engaged 
in  the  execution  of  an  act  of  congress,  and  acting  within  the 
sphere  rtf  his  authority,  can  be  subject  to  the  control  of  the 
’  judicial  tribunals  of  the  States.  It  is  natural  that  the  judicial 
mind  should  approach  a  question  which  concerns  the  liberty 
of  the  citizen,  with  a  profounder  solicitude,  and  a  more  sensitive 
delicacy  :  nevertheless,  the  principle  is  the  same,  when  the 
authority  of  the  government  touches  the  property  of  the  citi¬ 
zen,  as  when  it  touches  his  person.  And  the  same  doctrine 
which  gives  to  the  State  tribunals  a  power  to  supervise  such 
official  action  as  concerns  the  liberty  of  the  citizen,  must  sub- 


14 


jeet  to  the  arbitrament  of  the  humblest  State  officer,  clothed 
with  judicial  authority,  the  regularity  and  legality  of  the  acts 
of  all  the  officers  of  the  government,  whose  functions  reach  the 
property  or  the  money  of  the  people.  The  power  of  taxation, 
of  collecting  the  customs,  of  regulating  foreign  commerce  and 
commerce  between  the  States,  of  restoring  fugitive  slaves, 
of  raising  and  supporting  armies,  and  all  the  other  powers  of 
government,  would  be  exercised  by  its  officers  under  its  author¬ 
ity,  subject  to  the  controlling  interference  of  the  local  tribunals, 
within  the  jurisdiction  of  which  the  power  should  chance  to 
be  in  process  of  execution.  Authority  conferred  by  all  the 
States,  to  be  exercised  by  a  government,  in  the  administration 
of  which  all  the  people  and  all  the  States,  directly  or  indi¬ 
rectly,  participate,  would  be  admeasured  and  regulated  by  the 
tribunals  of  particular  localities.  A  law  for  the  raising  of 
revenue,  or  of  armies,  might  receive  the  acquiescence  and 
prompt  obedience  of  a  majority  of  the  States;  while  a  minority, 
by  aid  of  their  courts,  utterly  thwarted  its  execution  within 
their  limits.  Thus  a  burden,  designed  to  be  common,  would  be¬ 
come  partial.  And  a  clash  of  authority  between  the  States  and 
the  Confederate  government  would  load  to  disastrous  results. 

The  officers,  executing  the  law  of  conscription,  are  required 
to  act  under  rules  given  them  from  the  war  department. 
Guided  by  those  rules,  the  officers  may  attain  a  conclusion 
altogether  variant  from  that  which  a  State  judge,  either  unin¬ 
formed  as  to  those  rules,  or  not  recognizing  their  obligation 
upon  him,  would  attain.  I  presume,  tfiat  those  who  argue  the 
subordination  of  the  Confederate  officers  to  the  State  tribunals, 
would  repudiate  the  idea  of  the  government  of  those  tribunals 
by  regulations  of  the  war  department  ;  for  the  argument 
which  maintains  a  supervisory  authority  over  the  subordinate 
officer  would  as  well  apply  to  his  superior.  Are  we,  then,  to 
have  an  officer,  obligated  by  rules  and  regulations  from  the  war 
department,  subject  to  the  supervision  and  control  of  another, 
who  is  not  bound  to  an  observance  of  them?  Are  we  to  have 
an  officer  convicted  as  a  usurper,  and  made  amenable  to  dam- 


15 


ages  as  a  trespasser,  who  has  acted  correctly  according  to 
regulations  which  govern  him,  but  who  is  to  be  tried  by  a  tri¬ 
bunal  not  recognizing  them  ?  These  inquiries  suggest  a  very 
conclusive  argument  against  the  assumption  of  State  authority 
in  these  cases. 

I  do  not  controvert  the  right  of  State  courts  to  interpret  the 
constitution,  treaties,  and  laws  of  the  Confederate  States,  and 
treat  as  nullities  all  laws  infringing  the  constitution,  in  cases 
over  which  they  have  jurisdiction.  The  point  of  my  argument 
is,  that  these  cases  are  without  the  jurisdiction  of  the  probate 
judge,  and  he  can  not  adjudge  any  thing  concerning  the  rights 
of  the  parties. 

Nor  do  I  controvert  the  general  proposition,  that  the  courts 
of  the  States  have  concurrent  jurisdiction  over  all  subjects 
cognizable  in  the  courts  of  the  Confederate  States,  when  it  is 
not  otherwise  provided  by  law.  But  I  think,  that  the  general 
rule  must  be  taken  with  the  exception  of  those  cases  in  which 
the  execution  of  the  laws  of  the  Confederate  States  by  its  offi¬ 
cers  is  to  be  supervised  and  controlled. 

I  am  not  unmindful  of  the  argument  ab  incmvenienti.  which 
has  been  made.  It  may  be,  that  access  to  a  judicial  officer  of 
the  Confederate  States  would,  at  present,  be  inconvenient ; 
but,  if  so,  it  is  an  evil  which  could  easily  be  avoided,  by  an 
act  of  congress  increasing  the  number  of  officers,  and  adjusting 
their  locations  with  a  view  to  the  convenience  of  the  people. 
The  postponement  of  this  duty  by  congress  can  not  justify  us 
in  the  abandonment  of  a  principle,  or  in  the  setting  of  a  per¬ 
nicious  precedent.  Moreover,  it  must  be  observed,  that  the 
government  of  the  Confederate  States  has  not  been  so  unmind¬ 
ful  of  the  liberty  of  the  citizen,  as  to  leave  it  to  the  irrevisable 
decision  of  the  subordinate  enrolling  officer.  On  the  contrary, 
an  appeal  to  the  commandant  of  conscripts,  and  thence  to  the 
secretary  of  war.  is  provided  by  the  regulations  prescribed 
for  the  officers  employed  in  the  execution  of  the  law  ;  and  1 
presume  the  appeal  could  be  extended  to  the  president  him¬ 
self.  I  am  not  prepared  to  admit,  that  this  succession  of 


16 


officers  does  not  afford  a  reasonable  assurance  of  the  mainten¬ 
ance  of  justice,  right  and  law.  At  least,  no  one  can  justly 
complain  that  no  remedy  against  an  erroneous  decision  is  pro¬ 
vided,  until  he  has  tested  those  which  the  government  extends 
to  him.  And  besides  all  this,  a  resort  may  be  had  to  the  judge 
of  the  court  of  the  Confederate  States.  The  government  of 
the  Confederate  States  was  organized  by  the  Slates,  and  its 
laws  have  been  passed  and  its  officers  selected,  directly  or 
indirectly,  by  the  States  and  the  people  ;  and  it  should  have 
the  generous  confidence  and  the  manly  support  of  the  country, 
in  the  present  struggle  for  independence  and  liberty. 

If  it  be  true  that,  at  common  law,  the  facts  alleged  in  the 
return  to  a  habeas  corpus  can  not  be  contested;  and  if  no  remedy 
for  that  vice  in  the  law  had  been  provided,  the  blame  would 
be  due  to  the  State  government.  But  in  fact,  in  this  State, 
and  in  all  the  other  States  of  the  Confederacy,  as  far  as.  our 
examination  has  been  extended,  there  is  an  express  provision 
for  the  contestation  of  the  return. — Code,  §  3782.  If,  there¬ 
fore,  a  false  return  should  be  made,  that  the  petitioner  Avas 
held  by  a  duly  appointed  officer  by  competent  authority,  it 
Would  be  the  duty  of  the  probate  judge  to  hear  a  contestation 
of  the  return,  and  not  to  remand  the  prisoner  if  the  return 
was  false.  In  these  cases,  the  petitions  themselves,  when 
properly  construed,  show  the  want  of  jurisdiction  in  the  pro¬ 
bate  judge  :  and  it  was  his  duty  to  have  rejected  them  in  lim¬ 
ine. — Ex  parte  Tobias  Watkins,  3  Peters,  201. 

[2.  |  The  cases  of  Ex  parte  Burnett,  30  Ala.  461.  and  Ex  parte 
Smith.  23  ib.,  are  deemed  conclusive  authority  in  favor  of  the 
right  to  apply  to  this  court  for  a  prohibition,  without  a  previ- 
ous  application  to  an  inferior  court.  The  probate  judge,  in 
granting  the  lialteas  corpus  upon  the  petitions,  exercised  an 
authority  that  did  not  belong  to  him  ;  and  there  is  no  other 
remedy  than  the  writ  of  prohibition.  It  is  clear,  therefore, 
that  that  writ  is  t lie  proper  remedy. — Ex  parte  Morgan  Smith, 
23  Ala.  94;  Ex  parte  Walker,  25  ib.  81  ;  Ex  parte  Greene  & 
Graham,  29  ib.  52.  The  petitioner  for  the  prohibition  is  the 


17 


party  whose  custody  of  the  conscript  is  interfered  with,  an 
we  think  he  may  make  this  application. 

Judge  Stone  concurs  with  the  conclusions  of  this  opinion, 
hut  upon  his  own  reasoning. 

If  we  have  the  facts  of  these  cases  correctly  presented  t«s-  - 
us  in  the  petitions,  the  foregoing  opinion  is  decisive  of  theme 
But,  as  the  facts  do  not  appear  of  record,  we  deem  it  the  safer 
course  to  issue  a  rule  nisi  to  the  probate  judge. — 3  Blacks.. . 

Com.  113-14. 

STONE,  J. — In  the  discussion  of  the  questions  before 
us — among  the  gravest  that  ever  came  before  this  court — we 
have  to  lament  the  absence  of  our  brother  R.  W.  Walker,  who  • 
is  detained  at  home  by  providential  causes.  Deprived  of  his 
counsel  and  co-operation,  we  would,  under  ordinary  circum¬ 
stances,  withhold  our  decision  in  cases  commanding  the  deep- 
interest  which  these  do.  But,  being  thoroughly  convinced  of 
the  correctness  of  the  results  we  attain,  so  far  as  we  now  pro¬ 
pose  to  announce  them,  we  have  felt  that  the  public  welfare 
demands  an  early  decision.  Hence,  the  reluctance  with  which 
we  approach  this  interesting  question,  in  the  absence  of  a  full 
court,  must  yield  to  the  paramount  claims  of  the  public  service. 

I  propose,  as  brief!}’  as  I  can.  to  give  the  reasons  which  lead 
my  mind  to  the  same  result  as  that  which  has  been  announced 
by  my  brother,  the  Chief  Justice.  In  doing  so,  however,  I 
wish  it  understood,  that  I  limit  the  operation  of  my  remarks 
to  cases  which  are,  in  principle,  like  the  one  before  us.  I  with¬ 
hold  the  expression  of  any  opinion  on  all  those  cases,  in  which 
the  party,  either  by  name,  or  as  one  of  a  class  or  sect,  stands 
absolutely  and  unconditionally  exempt  from  conscription,  with¬ 
out  any  other  qualification  than  that  he  is  of  the  given  class; 
such,  for  example,  as  persons  under  the  age  of  eighteen  years, 
or  over  forty-five  ;  officers,  judicial  and  executive,  of  the  Con¬ 
federate  and  State  governments,  &c.  There  are  still  other 
2 


t 

18 

classes  of  a  mixed  character,  upon  which  I,  at  present,  express 
no  opinion. 

I  shall  devote  but  little  time  to  the  consideration  of  the 
constitutionality  of  the  acts  of  congress  known  as  the  “  con¬ 
scription  laws.”  The  power  to  conscribe  the  citizens  of  the 
several  States  composing  this  Confederacy,  is,  in  my  judgment, 
expressly  given  in  those  grants  of  the  constitution  which  confer 
on  congress  the  power  “  to  declare  war,”  “  to  raise  and  sup- 
port  armies,”  “to  provide  and  maintain  a  navy,”  and  “to make 
rules  for  the  government  and  regulation  of  the  land  and  naval 
forces.” — Const,  of  Confederate  States,  art.  I,  sec.  8,  subd.  11, 
12,  IB,  11.  These  are  specific  grants  of  power,  in  language 
free  from  ambiguity  ;  and  in  neither  of  the  clauses  quoted  is 
found  a  word  or  syllable,  which  defines  the  mode  or  manner  of 
executing  the  power.  The  same  clause  Avhich  gives  the  power 
to  raise  armies,  gives  also  the  power  to  support  armies.  The 
two  words  are  coupled  together  by  the  copulative  conjunction; 
mid  if  the  one  power  require  the  agency  of  State  authority  for 
its  execution,  by  every  sound  canon  of  construction,  the  other 
power  must  equally  require  such  agency.  In  fact,  all  the  grants 
of  power  in  the  8th  section  of  the  1st  article  of  the  consti¬ 
tution — seventeen  that  are  specific,  and  one  general  in  its 
terms — are  one  continuous  sentence  ;  each  clause  being  ex¬ 
pressed  in  phraseology  of  kindred  character ;  and  if  con¬ 
gress  can  not  directly  execute  the  powers  enumerated  above, 
neither  could  that  body  directly  execute  the  other  powers 
therein  granted.  Now,  when  we  reflect  that,  among  the  enu¬ 
merated  grants  found  in  that  section  and  sentence ,  are  the  power 
“  to  lay  and  collect  taxes,  duties,  imposts  and  excises,”  “  to  bor¬ 
row  money  on  the  credit  of  the  Confederate  States,”  “  to  regu¬ 
late  commerce  with  foreign  natiofis,”  “to  coin  money,”  “to 
declare  war,”  <fcc., — surely  it  will  not  be  contended,  that  these 
powers  can  only  be  exercised  through  State  instrumentality. 
Prigg  v.  Commonwealth,  16  Peters,  616. 

The  16th  clause  of  the  section  I  am  considering,  contem¬ 
plates  that  the  militia — which  constitutes  the  material  out  of 


19 


which  armies  are  to  be  raised — may  be  kept  in  a  state  of  organ¬ 
ization  and  discipline  ;  and,  inasmuch  as  invasions  or  insurrec¬ 
tions  may  be  suddenly  precipitated  upon  us,  or  the  execution 
of  the  laws  of  the  Confederate  States  may  be  resisted  in  force, 
so  as  to  require  prompt  and  vigorous  measures  for  the  defense 
of  the  country  and  the  welfare  of  society,  congress  is  also 
empowered,  by  the  15th  clause,  “  to  provide  for  calling  forth 
the  militia.”  This  is  a  separate  clause,  distinct  from  the  author¬ 
ity  to  raise  armies ;  and  was  deemed  a  necessary  reserve  to 
meet  exigencies,  in  a  country  which  revolted  at  the  idea  of 
large  standing  armies,  or  splendid  military  establishments  in 
times  of  peace.  The  militia  for  exigencies  ;  the  army,  when 
war  has  become  an  established  fact. 

It  being  thus  shown,  as  I  think,  that  congress  is  clothed 
with  power  to  raise  armies  by  direct  means,  without  calling 
to  its  aid  State  authority,  it  follows  irresistibly,  that  congress 
is  the  sole  arbiter  of  the  means  and  machinery  it  will  adopt 
for  executing  this  power ;  with  the  well-known  limitation,  that 
the  means  employed  shall  be  both  necessary  and  proper  for 
carrying  into  execution  the  granted  power  ;  that  is,  as  I 
understand  this  clause,  that  both  qualifying  words  shall  have 
operation  and  effect.  Necessary  to  the  full  enjoyment  of  the 
right ;  and  proper — homogeneous  and  harmonious  with  our 
compound  system  of  government.  No  matter  how  necessary 
the  proposed  means  may  appear,  still,  if  it  antagonize  any 
of  the  reserved  rights  of  the  States  or  of  the  people,  or  mili¬ 
tate  against  any  of  the  principles  which  underlie  our  liberties, 
then  it  is  not  proper  ;  and,  on  the  other  hand,  if  the  means 
proposed  be  in  harmony  with  every  principle  of  our  institu¬ 
tions,  and  be  not  necessary  to  the  full  enjoyment  of  some  power 
granted  to  the  Confederate  government,  the  employment  of 
such  means  by  that  government  would  be  a  sheer  usurpation. 
When  I  speak  of  incidents  to  the  grants  of  power  to  the  Corn- 
federate  government,  I  mean  express  grants  ;  for  there  should 
be  no  incidents  to  incidental  powers. — See  Federalist,  No.  33. 

The  magnitude  and  intensity  of  the  war  that  is  being  waged 


20 


against  us,  render  it  necessary  that  our  young  government  put 
forth  its  greatest  strength  for  the  protection  of  our  liberty  and 
our  property.  This,  I  am  satisfied,  could  not  be  accomplished 
by  any  means  short  of  compulsory  enrollment ;  and  hence  I 
hold,  that  the  conscription  acts  are  constitutional. 

It  was  early  said,  that  over  subjects  which,  before  the  adop¬ 
tion  of  the  Federal  constitution,  were  within. State  cognizance, 
the  powers  of  legislation  granted  to  congress  were  never 
exclusive  of  similar  powers  existing  in  the  State  legislatures, 
except  in  cases  in  which  the  constitution  has,  in  express  terms, 
given  an  exclusive  power  to  congress,  or  the  exercise  of  a  like 
power  was  prohibited  to  the  States,  or  there  was  a  direct 
repugnancy  or  incompatibility  in  the  exercise  of  it  by  the 
States. — See  Houston  v.  Moore,  5  Wheat.  1 ;  1  Kent’s  Com. 
390,  in  margin  ;  Federalist,  No.  82;  Sturgis  v.  Crowninshield, 
4  Wheat.  193  ;  Prigg  v.  Commonwealth,  16  Pet.  625.  Ch. 
Kent  adds  :  “The  States  retain  concurrent  authority  with  con¬ 
gress,  except  where  the  laws  of  the  States  and  of  the  Union  are 
in  direct  and  manifest  collision  on  the  same  subject ;  and  then 
those  of  the  Union,  being  the  supreme  law  of  the  land,  are  of 
paramount  authority,  and  the  State  laws,  so  far,  and  so  far  only 
as  such  incompatibility  exists,  must  necessarily  yield.” 

The  first  and  second  of  these  exceptions  seem  to  be  so  plain, 
as  to  leave  no  ground  for  dispute.  The  third,  though  much 
more  difficult  of  practical  administration,  must  also  be  con¬ 
ceded.  All  the  authorities  hold,  that  when  the  powers  of  the 
two  governments  are,  under  the  rules  above  declared,  concur¬ 
rent,  it  is  within  the  power  of  congress  to  make  the  jurisdiction 
exclusive  in  the  Confederate  government ;  and  that  whenever 
congress  is  in  the  actual  exercise  of  a  power  thus  possessed 
concurrently  by  the  Confederate  and  State  governments,  this, 
without  more,  takes  away  the  power  of  the  States,  to  the 
extent  congress  exercises  the  power. — Houston  v.  Moore, szcpra; 
Moore  v.  Houston,  3  Serg.  &  R.  179;  Blanchard  v.  Russel, 
13  Mass.  16;  Livingston  v.  Van  Ingen,  9  Johns.  507;  Prigg  v. 
Commonwealth,  16  Pet.  617-18. 


21 


At  an  early  day  under  the  government  of  the  United  States, 
it  was  also  decided,  that  over  subjects  of  judicial  cognizance, 
which  owe  their  existence  to  the  Federal  government,  the 
State  courts  have  no  jurisdiction,  unless  it  be  conferred  by  the 
Federal  government;  and  it  was  further  settled,  than  even 
when  such  jurisdiction  has  been  thus  conferred,  the  State  tri¬ 
bunals  are  not,  by  the  mere  force  thereof,  required  to  assume 
the  jurisdiction  tendered,  but  can  exercise  it  or  not,  at  their 
pleasure,  subject  to  the  control  of  their  own  legislatures. 
2  Story  on  Cons.  §§  1755-6,  and  note  2  ;  Houston  v.  Moore, 
supra;  1  Kent’s  Com.  in  margin,  396;  Prigg  v.  Commonwealth, 
16  Peters,  539,  622;  Ex  parte  Gist,  26  Ala.  156.  The  crimi¬ 
nal  jurisdiction  of  the  Confederate  States  cannot,  consistently 
with  the  constitution,  be  delegated  to  State  courts. — Martin 
v.  Hunter,  1  Wheat.  304. 

On  the  subject  of  judicial  powers,  it  was  said  in  the  82d  No. 
of  the  Federalist,  “that  the  State  courts  would  retain  the  juris¬ 
diction  [they  had  before  the  adoption  of  the  constitution],  unless 
it  appears  to  be  taken  away”  in  one  of  the  modes  above  men¬ 
tioned,  as  taking  away  the  legislative  jurisdiction  of  the  States. 
Chancellor  Kent’s  statement  of  the  principle  thus  laid  down 
in  the  Federalist,  slightly  variant  from  the  original,  is,  “  that 
the  State  courts  retained  all  pre-existing  authorities,  or  tho 
jurisdiction  they  had  before  the  adoption  of  the  constitution, 
except  where  it  was  taken  away,  either  by  an  exclusive  author¬ 
ity  granted  in  express  terms  to  the  Union;  or  in  a  case  where 
a  particular  authority  was  granted  to  the  Union,  and  the  exer¬ 
cise  of  a  like  authority  was  prohibited  to  the  States  ;  or  in  the 
case  where  an  authority  was  granted  to  the  Union,  with  which 
a  similar  authority  in  the  States  would  be  utterly  incompati¬ 
ble.” — 1  Com.  395-6.  “  This  doctrine,”  adds  Chancellor  Kent, 
“  was  only  applicable  to  those  descriptions  of  pauses,  of  which 
the  State  courts  had  previous  cognizance.”  In  the  case  of 
Houston  v.  Moore,  supra ,  in  speaking  of  this  question,  the 
court  adopted  the  theory  of  the  Federalist,  given  above;  with 
the  reservation,  that  congress  has  power  to  withdraw  the  whole, 


22 


or  any  part,  of  cases  thus  circumstanced  from  the  jurisdiction 
of  the  State  courts. 

It  will  thus  be  seen,  that  there  is  a  substantial  conformity 
between  the  declared  rule  which  governs  the  question  of  con¬ 
currence  of  legislative  jurisdiction,  and  that  which  obtains  on 
the  same  question,  when  it  arises  in  the  performance  of  judi¬ 
cial  functions. 

Whether  the  rule  above  declared  receive  the  approbation 
of  all  legal  minds  or  not,  I  apprehend  that  no  one  will  contend 
for  a  larger  exercise  by  State  authorities  of  what  are  called 
the  concurrent  jurisdictions  of  the  two  governments,  than  is 
there  sanctioned.  Taking  this  rule  and  its  exceptions  for  my 
guide,  I  think  the  present  cases  can  be  shown  to  be  within 
the  operation  of  one,  if  not  more  than  one  of  the  exceptions. 

I  have  shown  above,  that  congress,  having  power  “  to  raise 
armies,”  may  directly  employ  such  means  as  may  be  necessary 
and  proper  to  carry  this  power  into  full  effect.  Tli#  only 
source  from  which  it  can  draw  the  personnel  of  an  army,  is  found, 
in  the  citizens  of  the  several  States.  The  acts  of  congress, 
known  as  ‘‘the  conscription  laws  ”,  being  both  necessary  and 
pn'oper,  as  means  of  carrying  into  effect  the  expressly  delegated 
power  “  to  raise  armies”;  various  officers,  agencies,  rules  and 
regulations  were  equally  necessary  and  proper  instrumen¬ 
talities,  in  carrying  into  effect  this  express  grant  of  power. 
Hence  these  means  were  also  constitutional.  In  fact,  every 
step  taken,  and  to  be  taken,  from  the  call  and  enrollment  of 
the  citizen,  to  the  maturing  and  equipping  a  well-appointed 
and  disciplined  army,  required  agencies,  rules,  skill,  and  organ¬ 
ized  procedure,  which  could  only  be  attained  or  expected  in  a 
system  having  one  head,  and  governed  by  uniform  rules  of 
action. 

.  These  multiplied  agencies,  trusts  and  duties,  being  all  within 
the  constitutional  power  of  congress,  and  many  of  them  requir¬ 
ing  professional  knowledge  and  skill  which  can  not  be  looked 
for  in  persons  who  have  not  had  the  advantages  of  military 
training  and  experience,  it  was  very  natural  that  the  Confed- 


erate  government  should  draw  to  Itself  the  exclusive  direction 
and  determination  of  the  various  questions  incident  to  the 
formation  of  its  armies  ;  and  this  precise  thing,  I  think,  it  has 
done. — See  Prigg  v.  Commonwealth,  supra,  page  (123. 

The  3d  section  of  the  act  approved  April  16th,  1802,  declares, 
that  in  making  enrollments,  it  shall  be  lawful  for  the  presi¬ 
dent,  with  the  consent  of  the  governors  of  the  respective 
States,  to  employ  State  officers  ;  and  on  failure  to  obtain  such 
consent,  he  shall  employ  Confederate  officers,  charged  with 
the  duty  of  making  such  enrollment,  “in  accordance  with  rules 
and  regulations  to  be  prescribed  by  him,:' 

By  the  act  approved  Oct.  8th,  1802,  it  is  provided,  “that  all 
persons,  subject  to  enrollment  for  military  service,  may  be 
enrolled  under  instructions  from  the  war  department ”,  Ac. — Stat.. 
at  Large,  70. 

By  the  act  approved  Oct.  11th,  1802,  (Stat.  at  Large,  75.) 
certain  places  of  rendezvous  were  ordered  to  be  established  in 
each  county,  parish,  or  district,  for  persons  “  enrolled  for  mili¬ 
tary  duty  in  the  field,  who  shall  be  there  examined  by  one  or 
more  surgeons,  to  be  employed  by  the  government,  to  be 
assigned  to  that  duty  by  the  president,  on  a  day  of  which  ten 
days’  notice  shall  be  given  by  said  surgeon; 
and  the  decision  of  said  surgeons,  under  regulations  to  be 
established  by  the  secretary  of  war,  as  to  the  physical  and  men¬ 
ial  capacity  of  any  such  person  for  military  duty  in  the  feld, 
shall  be  final.” 

Under  the  above  acts,  the  following  rules  and  regulations 
have  been  ordained  and  established  by  the  war  department,  in 
reference  to  enrollments  and  exemptions: 

“  Questions  of  bodily  and  mental  incapacity,  will  be  decided 
by  surgeons  employed  for  the  purpose,  by  virtue  of  the  act  of 
congress  approved  on  the  11th  of  October,  1862. 

“  Persons  deemed  incapable  of  bearing  arms,  shall  be  re¬ 
ported  by  the  examining  surgeon  to  the  board  of  examination, 
who  shall  determine  the  questions  of  exemption,  and  grant 
certificates  thereof.  *  *  *  g0  eoon  as  the  examining 

board  shall  be  organized  in  any  congressional  district,  and 


24 


•shall  enter  upon  the  discharge  of  their  duties,  no  other  mode  of 
■xcnnination  for  persons  in  that  district  will  he  pursued  ;  and  the 
decision  of  the  examining  board  will  be  deemed  final. 

Applications  for  exemption  must,  in  all  cases,  be  made  to 
.he  enrolling  officer,  from  whose  decision  an  appeal  may  be 
taken  to  the  commandant  of  conscripts.  The  department  will 
not  consider  the  application,  until  it  has  been  referred  by  the 
latter,  officer.” 

‘■Now,  it  seems  to  me  to  be  clear,  that  what  I  have  quoted 
above  demonstrates,  that  congress  has  taken  to  itself,  to  the 
war  department,  and  to  the  officers  for  whose  appointment  it 
makes  provision,  the  exclusive  determination  of  the  questions 
raised  by  the  several  petitions  for  habeas  corpus ,  which  were 
presented  to  the  probate  judge;  and  that  with  equal  clearness, 
.t  has  denied  to  the  State  tribunals  the  adjudication  of  these 
questions. 

It  may  be  said,  however,  that  the  Confederate  government 
nas  made  no  express  provision  for  the  writ  of  habeas  corpus  in 
these  several  cases,  nor  has  it  denied  the  use  of  that  writ  to 
the  State  tribunals ;  and  from  these  conceded  premises,  the 
:-onclusion  may  be  attempted  to  be  drawn,  that  the  concurrent 
'urisdiction  of  the  courts  of  the  two  governments  exists,  under 
:he  rules  stated  above.  The  argument  implied  in  this  state¬ 
ment  falls  to  the  ground,  when  we  take  into  consideration 
;he  issues  of  fact  and  of  law  which  are  sought  to  be  raised  in 
the  petitions  for  habeas  corpus.  These  applicants  claim  enlarge¬ 
ment  on  the  ground  of  physical  incapacity  to  perform  military 
service.  They  seek  to  revise,  reverse  and  annul  the  decision 
of  this  question,  pronounced,  or  to  be  pronounced,  by  the  sur¬ 
geon,  board  of  surgeons,  commandant  of  conscripts,  or,  per¬ 
chance,  by  the  secretary  of  war  ;  and  this,  in  the  very  face  of 
the  act  of  congress,  \^hich  declares  that  such  decision  shall  be 
final.  Against  the  statute  and  the  regulations  to  the  contrary, 
they  seek  to  open  the  door  for  proof  of  physical  incapacity,  by 
surgeons  and  physicians  other  than  those  provided  for  by  the 
act  of  congress  ;  for  the  judge,  to  whom  these  petitions  were 
addressed,  could  not,  and  would  not,  undertake  the  decision  of 


23 


grave  questions  in  medical  science,  without  the  aid  of  evidence! 

The  law  looks  to  the  substance,  rather  than  to  the  form  or 
shadow  of  things  ;  and  it  is  a  sound  maxim,  that  that  which 
can  not  be  done  directly,  can  not  be  done  indirectly.  A  juris¬ 
prudence  would  become  contemptible,  should  it  hold  that  its 
great,  fundamental  principles  could  be  subverted,  by  the  sub¬ 
stitution  of  one  form  of  procedure  for  another. 

The  exercise  of  the  proposed  power  by  the  State  tribunals, 
looking,  as  it  does,  to  the  reversal  of  decisions  pronounced  by 
Confederate  officials,  would  be  utterly  repugnant  to,  and  incom¬ 
patible  with,  the  definitive  exercise  of  the  same  powers  by  the 
Confederate  authorities,  as  provided  for  by  the  act  of  congress 
and  the  rules  established  thereunder.  This  principle  brings 
the  cases  we  are  considering  within  the  direct  operation  of  the 
exceptions  to  the  rules  about  concurrent  jurisdiction,  as  above 
laid  down. 

The  several  acts  of  congress  cited  in  this  opinion,  and  the 
instructions  framed  under  their  authority,  commit  the  deter¬ 
mination  of  the  various  questions  involved  in  these  petitions 
for  habeas  corpus,  to  certain  officers  and  agents  of  the  Confed¬ 
erate  government.  Under  these  circumstances,  the  State 
legislatures  have  no  authority  to  create  a  new  remedy  or 
forum  for  their  adjudication. — See  Wayman  v.  Southard, 
10  Wheat.  1 ;  U.  S.  Bank  v.  Halsted,  ib.  51.  It  would  bo 
strange,  if  the  State  courts,  in  the  absence  of  legislation,  could 
perform  functions  which  the  legislature  lias  no  power  to  con¬ 
fer  on  them. 

That  the  Confederate  courts  can  redress  individual  griev¬ 
ances  growing  out  of  any  errors  or  oppressions  that  may  arise 
under  the  discharge,  by  Confederate  officers,  of  the  functions 
pertaining  to  enrollment,  is,  perhaps,  too  clear  to  be  contro¬ 
verted. 

If  it  be  contended  that  these  petitioners  were  not  liable  to 
be  conscribed,  “  by  reason  of  bodily  incapacity,”  and  that 
therefore  they  could  not  be  enrolled  as  conscripts,  the  author¬ 
ity  to  conscribe  not  extending  to  them,  the  answer  is  fur- 


26 


nished  by  the  exemption  statute  itself.  Its  language  is,  “  That 
all  persons  who  shall  be  held  unfit  for  military  service  in  the 
field,  by  reason  of  bodily  or  mental  incapacity  or  imbecility, 
under  rules  to  be  prescribed  by  the  secretary  of  Avar.”  The 
petitioners  do  not*  show  that  they  have  been  held  unfit  for 
military  service  in  the  field,  under  the  rules  that  were  pre¬ 
scribed  by  the  secretary  of  Avar. 

I  am  aAvare  that,  in  the  course  of  this  opinion,  I  haArn  uttered 
sentiments  that,  on  a  severe  criticism,  may  be  considered  as 
opposed  to  some  of  the  expressions  found  in  the  opinion  of  this 
court,  in  Mabry,  Giller  &  Walker  v.  Herndon,  8  Ala.  848.  I 
do  not  think  those  expressions,  if  given  the  largest  significa¬ 
tion  of  Avhich  they  are  susceptible,  declare  the  true  rule  as 
to  concurrence  of  jurisdiction  in  Federal  and  State  courts, 
arising  under  acts  of  congress.  They  Avere  unnecessary  to  the 
decision  in  that  case,  because,  under  the  act  of  congress  “  to 
establish  a  uniform  system  of  bankruptc}"  throughout  the 
United  States,”  (5  United  States  Statutes  at  Lai-ge,  440,  444,) 
the  certificate  of  discharge  to  the  bankrupt  is  not  a  perfect 
res  adjudicata — not  an  absolute  discharge  from  all  debts,  but 
only  prima-facie  evidence  of  discharge,  liable  to  be  impeached, 
in  any  court  in  which  it  is  pleaded,  for  some  fraud  or  willful 
concealment  by  the  bankrupt  of  his  property  or  rights  of 
property.  The  discharge,  then,  was  only  conditional ;  depend¬ 
ing  on  the  question,  Avhether  it  was  successfully  impeached  on 
some  ground  mentioned  in  the  statute.  This,  in  terms,  gave 
to  any  court  in  Avhich  the  discharge  Avas  pleaded  jurisdiction 
of  the  issue  to  be  formed  on  its  bona  fides  and  validity. 

If  it  be  contended  that,  under  our  construction,  denjnng  to 
the  State  courts  jurisdiction  in  cases  of  habeas  corpus  at  the 
suit  of  enrolled  conscripts,  such  as  these,  great  oppression  and 
abuse  may  fall  on  the  citizens,  for  which  they  have  either  no 
remedy,  or  a  very  inadequate  one  ;  the  ansAver  is,  that  some 
confidence  must  be  reposed  in  the  virtue,  integrity  and  intelli¬ 
gence  of  the  government  officials.  The  Confederate  govern¬ 
ment  Avas  created  by  and  for  the  States — derives  its  support 


27 


and  continued  existence,  either  directly  or  indirectly,  from  the 
same  constituency  which  makes  up  the  several  States ;  and 
the  corrective  is  in  the  hands  of  the  people  themselves,  who 
can  demand  through  their  representatives  ample  means  of 
redress,  or,  failing  in  that,  can  displace  them  for  their  infidelity, 
and  fill  their  places  with  officers  more  trust-worthy.  It  is  bet¬ 
ter  to  endure  this  individual  oppression  for  a  season,  than  that 
the  great  bulwarks  which  guard  and  defend  our  liberties,  nay, 
our  very  existence,  should  be  broken  down  forever. 

I  am  of  that  school  who  believe,  that  the  Confederate' gov¬ 
ernment  is  one  of  limited  and  defined  powers,  and  that  great 
care  should  at  all  times  be  exercised,  to  prevent  it  from  enlarg¬ 
ing  its  powers  by  construction.  Our  compound  system  of 
government,  perhaps,  exposes  the  States  to  encroachments 
upon  their  reserved  rights,  more  than  any  other  form  of  con¬ 
stitutional  government  could  do.  This  grows  in  part  out  of 
the  fact,  that,  within  the  sphere  of  their  operation,  the  consti¬ 
tution  of  the  Confederate  States,  and  the  acts  of  congress 
passed  pursuant  thereto,  are  the  supreme  law  of  the  land.  The 
constitution,  in  addition  to  its  enabling  clauses,  which  confer 
powers  on  the  government,  contains  several  restraints  upon 
State  authority.  Under  these  clauses,  an  appellate  jurisdiction 
was  built  up  in  the  Supreme  Court  of  the  United  States,  which, 
in  my  opinion,  was,  in  some  instances,  carried  to  an  extent  of 
doubtful  propriety.  I  will  not  discuss  this  question  here,  fur¬ 
ther  than  to  say,  that  1  think  many  of  the  imputed  errors  which 
crfcpt  into  the  old  system  grew  out  of  the  mistaken  theory  of 
the  oneness  of  our  distinct  governments,  and  the  too  great 
subordination  of  the  State  to  the  Federal  government.  One 
source  of  alleged  encroachment  of  Federal  upon  State  author¬ 
ity,  has  been  removed  by  a  wise  amendment  of  the  second 
section  of  the  third  article  of  the  constitution  ;  and  other 
amendments  have  also  shorn  our  young  government  of  much 
of  the  power  which  the  old  one  wielded  to  our  detriment.  I 
hope  that,  when  the  Confederate  judiciary  shall  be  fully  or¬ 
ganized,  the  heresies  which  aided  in  overthrowing  the  old 


28 


Union,  will  not  be  allowed  to  enter  the  sanctuaries  of  the  new. 

I  do  not  mean,  in  what  I  have  said,  to  question  the  distin¬ 
guished  ability  which  has,  at  all  times,  marked  the  long  and 
brilliant  history  of  the  Federal  Supreme  Court.  My  precise 
meaning  is,  that,  in  my  judgment,  false  views  of  the  powers  of 
the  Federal  government,  and  especially  of  the  relations  which 
the  States  sustain  to  that  government,  found  utterance  at  an 
early  day ;  and  that  the  court,  in  later  years,  although  it  burst 
some  of  the  fetters  by  which  early  precedent  had  sought  to 
confine  it,  left  many  of  those  errors  unreversed.  Let  us  avail 
ourselves  of  the  much  good  bequeathed  to  us  by  the  many 
able  minds  which  have  adorned  that  bench  at  every  period 
of  its  history ;  but  let  us  avoid  the  errors  which  time  and  expe¬ 
rience  have  made  manifest. 

I  have  said  that  an  early  error  crept  into  our  system,  as  to 
the  relation  which  the  Federal  and  State  governments  sustain 
to  each  other.  In  my  opinion,  we  should  struggle,  from  the 
very  threshold  of  our  existence,  to  keep  the  powers  and  func¬ 
tions  of  the  two  governments  as  distinct  as  possible.  The 
dividing  lino  of  jurisdiction,  where  no  territorial  boundary 
marks  it,  must,  in  the  nature  of  things,  be  sometimes  difficult 
of  ascertainment.  Still,  the  line  exists,  and,  when  discovered, 
must  be  respected.  It  is  history,  now  made  sadly  impressive 
by  the  ocean  of  noble  blood  which  it  has  caused  to  flow,  that 
by  transgressions  of  this  boundary  line,  sometimes  by  the 
Federal,  and  sometimes  by  State  governments,  our  once  pros¬ 
perous  and  happy  country  is  now  the  theatre  of  a  war  of  almost 
unprecedented  malignity  and  atrocity.  That  enlightened  jurist 
and  venerated  patriot,  Chief-Justice  Taney,  speaking  for  the 
court,  felt  and  expressed  the  necessity  of  preventing  encroach* 
ments  by  one  jurisdiction  upon  the  other ;  but  his  counsels 
came  when  fanaticism  had  well  nigh  matured  its  parricidal 
plot,  the  culmination  of  which  is  now  converting  portions  of 
our  rich  domain  into  a  desolation. — See  Ableman  v.  Booth, 
21  How.  506;  Dred  Scott  v.  Sandford,  19  ib.  393. 

The  jurisdictional  area  of  each  government  should  be  kept 


29 


distinct — restraining  the  Confederate  government  within  the 
boundaries  of  its  delegated  authority,  and  not  allowing  the 
State  governments  to  trespass  on  Confederate  jurisdiction. 
The  powers  conferred  on  that  government  by  the  Confederate 
constitution,  the  laws  enacted  under  its  authority,  and  treaties 
made  pursuant  thereto,  are  the  supreme  law  of  the  land.  Let 
us  respect  and  obey  them  as  such.  Let  us  not  weaken  or 
destroy  our  Confederate  power,  by  embarrassing  that  govern¬ 
ment  in  the  manly  exercise  of  those  functions  with  which  the 
States  themselves  have  clothed  it.  This  will  neither  destroy 
nor  impair  the  sovereignty  of  the  several  States.  They  are 
not  despotisms.  For  certain  general  purposes,  they  have  con¬ 
ferred  on  the  Confederate  government  certain  attributes  of 
their  sovereignty  ;  but  they  retain  the  others.  They  have 
thus  become  constitutional,  instead  of  absolute  sovereignties. 
This  no  more  destroys  State  sovereignty,  than  does  the  sur¬ 
render  of  certain  attributes  of  natural  liberty  destroy  civil 
liberty.  In  upholding  and  maintaining  each  government  in 
the  exercise  of  its  constitutional  authority,  each  will  neces¬ 
sarily  be  kept  within  the  appointed  orbit  of  its  powers.  This, 
I  humbly  conceive,  would  effectually  prevent  all  collision  of 
{jurisdictions.  It  need  not,  and  would  not,  interdict  the  comi¬ 
ties  and  kind  offices  which  belong  to  good  neighborhood. 
These  should  be  cultivated  and  strengthened,  as  the  life-blood 
of  our  confederate  existence. 


30 


Ex  Parte  STRINGER. 

[application  for  babfas  corpus.] 

1.  Conscientious  scruples  against  bearing  arms  no  ground  for  discharge  of 
tnroUtd  conscript _ Tho  power  of  the  Confederate  government  to  conscribe  citi¬ 

zens  as  soldiers  is  derived  from  the  Confederate  constitution,  and  is  not  at  all 
dependent  on  the  provisions  of  the  State  constitution;  consequently,  a  person 
who  has  been  enrolled  as  a  conscript,  and  who  does  not  belong  to  one  of  the 
religious  denominations  specially  exempted  by  “the  conscript  laws”  of  con¬ 
gress,  cannot  claim  exemption  from  military  service  in  the  Confederate  armies, 
on  account  of  conscientious  scruples  against  bearing  arms. 

Application  by  Levi  N.  Stringer,  for  the  writ  of  habeas 
corpus,  to  obtain  his  discharge  from  the  custody  of  Major  W. 
T.  Walthall,  commandant  of  the  camp  of  instruction  near  Tal¬ 
ladega.  The  petitioner  alleged,  that  he  was  held  in  custody 
at  the  said  camp  of  instruction  as  a  conscript ;  that  he  was  a 
regular  member  of  a  “  Christian  church”,  and  had  conscien¬ 
tious  scruples  against  bearing  arms  ;  that  he  was  therefore 
exempt  from  military  service,  under  that  provision  of  the  State 
constitution  which  declares,  that  “  any  person  who  conscien- 
tiousty  scruples  to  bear  arms,  shall  not  be  compelled  to  do  so, 
but  shall  pay  an  equivalent  for  personal  service”,  and  claimed 
the  right  to  pay  an  equivalent  for  personal  service,  as  therein 
provided  ;  that  he  had  applied  to  the  Hon.  Jno.  T.  Heflin, 
one  of  the  circuit  judges  of  the  State,  for  the  writ  of  habeas 
corpus,  claimiug  his  right  of  exemption  from  military  service 
on  the  ground  above  stated  ;  and  that  said  judge,  on  the  hear¬ 
ing  of  the  writ,  had  refused  to  discharge  him. 

,  it 


L.  E.  Parsons,  for  the  petitioner. 


31 


STONE,  J. — The  acts  of  congress,  known  as  “  the  conscrip¬ 
tion  laws,”  are  constitutional. — Sec  Ex  parte  L.  H.  Hill,  in 
manuscript.  Those  acts  authorize  the  enrollment  and  con¬ 
scription  of  citizens  within  the  conscript  age  ;  and  this,  with¬ 
out  invocation  of  State  authority.  The  power  of  the  Confed¬ 
erate  government  to  conscribe  the  citizen,  is  de  rived  from  the 
Confederate  constitution,  and  is  not  at  all  dependent  on  the 
constitution  of  the  State  of  Alabama.  The  petitioner  does  not 
show  a  case  which  entitles  him  to  exemption  from  military 
service  under  the  acts  of  congress.  Conscientious  scruples 
against  bearing  arms,  unless  the  party  entertaining  them  be¬ 
longs  to  one  of  the  religious  sects  mentioned  in  the  statute, 
presents  to  the  courts  of  the  country  no  legal  ground  for  declar¬ 
ing  the  petitioner  exempt  from  military  duty. 

As  the  opinion  of  the  entire  court  is  not  yet  announced,  nor 
indeed  formed,  on  the  broad  question  of  jurisdiction  of  State 
courts  in  cases  like  the  present ; — and  as  we  feel  no  hesitation 
in  refusing  the  present  application  on  the  merits,  we  place  our 
refusal  on  the  ground  stated  above. 

The  prayer  of  the  petitioner  is  denied. 


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